ASUU versus the Law
By Sylvester Ikechukwu Onyema
Over the years, the society has more or less accepted the arbitrary interruption of academic calendar in federal universities through lecturers’ strike actions under the umbrella of Academic Staff Union of Universities (ASUU) as a norm. In fact, it is rare to find a student that completed a university degree through a federal university on schedule without strikes which has continued to affect the victims in many ways. Arguably, federal universities have been characterized by strike – this feature is injurious, counterproductive and unacceptable.
There are numerous ways strikes have negatively affected students particularly depriving many of the opportunity to participate in the National Youths Service Corps (NYSC) scheme considering that the pegged ’30years old’ is independent of circumstances be it delays from admission, strikes or other reasons. NYSC only looks at date-of-birth, and it is a desire of all young students to participate in the scheme. The rent on accommodation off-campus students paid for runs irrespective of strike. Beyond this, many have ended up as dropouts after any protracted strike particularly by depression or distracted by one commitment or another. Likewise, it terribly works against young job-seekers. For instance, many have ended up graduating after the year stipulated by employers due to strikes. These show that the helpless students suffer terribly from strikes, and being a strata of the society, it suffers ultimately.
Addressing this oversight has become compelling in view of continuous trauma the victims and society at large face each time a strike action was imposed. Creditably, Justice P.I. Hamman of the National Industrial Court of Nigeria (NICN) on 21st day of September, 2022 in a suit between FGN/Minister of Education v Academic Staff Union of Universities (ASUU) affirmed that “the amount of damages caused to the education sector in the nation and students in public universities as a result of the strike action is irreparable, and compensation cannot adequately address the loss”.
Naturally, there are bound to be conflicts wherever persons or institutions co-exist, and that’s the reason the laws are in place to regulate operations. Added to the ugly situation, on 16 November, 2022, the Minister of Education, Adamu Adamu highlighted that government only pays for services rendered, thus ASUU striking workers shouldn’t expect salaries when off-duty against public service rules. Is the federal government right or wrong?
First, ‘no work, no pay’ is a norm all over the world both in the private and public sectors. And a monthly take-home is a combination of all allowances like transport, housing, services etc. So, if deliberately, unlawfully absent from duty, is it justifiable, prudent to approve or receive, let’s split it, allowances for services not provided, transport without movement, etc? No work, no pay policy operates in all climes…USA, UK, Europe and Asia. In the International Labour Organization (ILO) principles, whilst workers have a right to embark on strike, it also backs employers to withhold payments of any wages or compensation to the striking workers to protect the enterprise from withering.
In the Trade Dispute Act Cap T8, Laws of the Federation of Nigeria, 2004 which regulates all trade unions including ASUU, Section 43, provides for a special provision with respect to payment of wages during strikes and lock-outs – (1) Notwithstanding anything contained in this Act or in any other law – (a) “where any worker takes part in a strike, he shall not be entitled to any wages or other remuneration for the period of the strike, and any such period shall not count for the purpose of reckoning the period of continuous employment and all rights dependent on continuity of employment shall be prejudicially affected accordingly”.
In the First Schedule (2) supra, “Essential services” is defined as “any service established, provided or maintained by the Government of the Federation or a State, by a local government council, or any municipal or statutory authority, or by private enterprise”. This includes all government’s approved unions including ASUU. In Section 41, a fifteen days’ notice to be given by workers in essential services before ceasing work is indispensable.
In Section 3, an obligation to deposit collective agreements with the Minister of Labour is provided. Subsection 1 provides, “Where there exists collective agreement for the settlement of a trade dispute, at least three copies of the said agreement shall be deposited by the parties thereto with the Minister – (a) in the case of a collective agreement entered into on or after the date of commencement of this Act, within thirty days of that; and (b) in the case of collective agreement entered into on or after the date of commencement of this Act, within the period prescribed in the foregoing provisions of this subsection, shall be guilty of an offence …..”.
Furthermore, the Act in Section 8 empowers the Minister to appoint a conciliator for the purpose of effecting a settlement of the dispute as well as authorizes in Section 17, for a direct reference to National Industrial Court in a futile settlement. As a check, Section 6 provides for reporting of dispute if not amicably settled after seven days to the Minister by either of the parties in writing within three days at the end of the seven days for a further specific action.
Section 17 aforesaid provides “If in the case of any trade dispute of which he has received a report under Section 6 of this Act, it appears to the Minister – (a) that the dispute is one to which workers employed in any essential service are a party; or (b) – that the circumstances of the case reference of the of the dispute to an arbitration tribunal would not be appropriate, then, within seven days of the receipt by him of a report under Section 8 (5) of this Act, the Minister shall refer the dispute to the National Industrial Court”.
In other words, these are statutory duties, and these laws are incumbent on Dr. Chris Ngige to carry out as the Minister of Labour & Employment. Unfortunately, his actions are seemingly misunderstood, leading the embattled lecturers calling for his head. Legally, the word ‘shall’ connotes ‘must’..thus, mandatory for the Minister to act accordingly including his referral to NICN.
Instructively, ASUU is a registered trade union and cannot be above the Law, and so, should go digest the Labour Laws instead of taking statutory issues personal against a cerebral Ngige in a combat. One may be a professor in some disciplines but this is a question of Industrial Disputes, her Laws, applications and operations.
*Onyema, LLM, an alumnus of University of East London wrote from Lagos
